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Welcome to STop, the Seattle Times Opinion blog where our editorial writers and editors share their evolving thoughts on a variety of issues. STop is a place where opinion writers and readers can exchange views and readers can learn more about how editorial positions are formed.

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June 23, 2005

What Is "Public Use"?

In the Kelo v. New London case, a majority of the U.S. Supreme Court ruled that it is OK for the government to take your property for “economic development”—that is, for other private interests to build condos, a hotel, a marina, and, in this case, a Pfizer research lab. It was a terrible ruling, but an interesting case for parsing out the justices.

The majority interpreted the Fifth Amendment line about taking of private property “for public use” to mean that private property can be taken if there is a public benefit. “Benefit” is much more promiscuous and obliging than “use.” This position was based on rulings going back to 1896, but mainly the public-housing rulings of 1954 and later. It was supported by all the liberal justices: Stevens, Breyer, Souter and Ginsburg. The moderate Kennedy had a separate opinion that tried to be a bit less permissive of government.

The main dissent was written by the moderate O’Connor and signed by the three conservatives: Rehnquist, Scalia and Thomas. Basically, O’Connor said, yeah, we’ve allowed government to do this before, but it was to get rid of a social problem, not simply for “economic development.” O’Connor said that taking people’s property is invasive, and that it shouldn’t happen for such vague reasons.

Justice Thomas, the court’s originalist, went further. Citing dictionaries and legal works going back to the 1700s, he argued that “public use” means use by the government or use of a private parcel in which the public has a legal right of access, as in a common-carrier railroad. He discussed a series of cases, starting with a lawsuit over an irrigation ditch in 1896, that strayed from that idea, and that led to the public-housing cases (principally Berman v. Parker,) which he said were wrongly decided.

To sum up: The court’s liberals aproved a widening of the government’s power. O’Connor, Rehnquist and Scalia would have defined that power in a more restrictive way, so as to disallow it in this case. Thomas would have narrowed it across the board.

I’ll go with Thomas.

Respond to Bruce.

 
Posted by Bruce Ramsey at June 23, 2005 05:32 PM



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